IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003142 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge.

2.  The applicant states that he was young and did not know the Army system at the time.  He enlisted nearly 30 years ago under the buddy system and wanted to go to armor school and be in a tank division, but ended up in a Pershing missile unit in Germany.  He states that he was also promised an assignment in Vietnam, but that did not happen.  He concludes that he wants to go down in history with an honorable character of service like his father before him.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 4 April 1972, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was born on 12 August 1950 and enlisted in the Regular Army at the age of 20 for a period of 3 years on 31 March 1971.  Item 48 (Options) of his DD Form 4 (Enlistment Contract) shows the entry "Enlisted for U.S. Army Europe (Army Career Group 11-Armor)."  He completed basic combat training at Fort Jackson, SC, and for unknown reasons proceeded to Fort Sill, OK, where he completed advanced individual training in and was awarded military occupational specialty (MOS) 15E (Pershing Missile Crewmember).  He was subsequently reassigned to the 3rd Battalion, 84th Artillery, in Germany.

3.  The applicant's records show he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  His record documents no acts of valor, significant achievement, or service warranting special recognition during his military service.

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 27 August 1971, for missing movement through neglect of his flight to Germany on or about 24 August 1971.  His punishment consisted of a forfeiture of $25.00 pay for 1 month;

	b.  on 27 September 1971, for being absent without leave (AWOL) during the period on or about 7 September 1971 through on or about 27 September 1971.  His punishment consisted of a forfeiture of $50.00 pay for 2 months and 45 days of extra duty (suspended for 4 months);

	c.  on 4 February 1972, for failing to go at the time prescribed to his appointed place of duty on three different occasions on or about 20 December 1971, on or about 31 December 1971, and on or about 13 January 1972; and failing to obey a lawful order from a superior noncommissioned officer on or about 13 January 1972.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $80.00 pay for 1 month, and 14 days of extra duty; and 

	d.  on 6 March 1972, for twice failing to go at the time prescribed to his appointed place of duty on or about 3 February 1972.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $70.00 pay for 1 month, 14 days of restriction, and 14 days of extra duty.

5.  On 15 March 1972, the applicant’s immediate commander notified the applicant by memorandum that he was being recommended for separation from the Army under the provisions of paragraph 6b(3) of Army Regulation 635-212 (Personnel Separations) for unsuitability.  The applicant acknowledged this notification on the same date.

6.  On 16 March 1972, the applicant consulted with counsel regarding his notification of his pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated he understood that if an undesirable discharge was issued to him, that discharge would be under conditions other than honorable and that as a result of such discharge, he could be deprived of many or all his rights as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life.

7.  On 16 March 1972, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 for unsuitability.  The immediate commander remarked that the discharge was recommended because the applicant's unusual behavioral pattern and inability to adjust to the structure of military life.  His actions had become detrimental to the unit's mission.  He further recommended a General Discharge Certificate.

8.  On 22 March 1972, the applicant's battalion commander also recommended approval of the applicant's elimination from the Army with a General Discharge Certificate.  He further indicated that the applicant had been maladjusted since his inception into the Armed Forces and that repeated warnings and counseling caused no improvement in his attitude or performance.  He was unmotivated, undependable, and lacked the self-esteem and determination to be a satisfactory Soldier.  His negative attitude towards the military and his complete disregard for authority were contagious and had adversely affected the morale of his platoon and hampered the mission of his unit.

9.  On 27 March 1972, the separation authority approved the applicant's discharge for unsuitability under the provisions of paragraph 6b(3) of Army Regulation 635-212 and directed that he receive a General Discharge Certificate. 
Accordingly, the applicant was discharged on 4 April 1972.  The DD Form 214 he was issued at the time confirms he completed 1 year and 4 days of creditable active military service.

10.  There is no indication in the applicant's records that he served in the Republic of Vietnam.

11.  There is no indication in the available record which shows he applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

12.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 (Personnel Separations) was directed.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded.

2.  With respect to the applicant's age, records show that the applicant was 20 years of age at the time of his enlistment and 21 years of age at the time of his multiple nonjudicial punishments.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  With respect to the applicant's enlistment option, the applicant enlisted for an armor specialty and assignment in Europe.  It is unclear why his MOS training changed to a Pershing missile specialist.  Nevertheless, there is no evidence that the applicant addressed the MOS issue with his chain of command or other support channels.  Furthermore, the applicant had many other options to resolve the MOS issue had he chosen to use them.

4.  The evidence of record shows the applicant had a pattern of misconduct as evidenced by his four instances of nonjudicial punishment, one instance of AWOL, and his total disregard for military authority.  Accordingly, his chain of command initiated elimination action against him.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

5.  The reason for the applicant’s discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general discharge to fully honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090003142



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ABCMR Record of Proceedings (cont)                                         AR20090003142



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